Twenty years after democracy, the judiciary, supposedly the third arm of government, is begging for money to survive and to be included in key decisions that affect it, says Chief Justice Mogoeng Mogoeng.

Speaking at Unisa on Tuesday night, Mogoeng said South Africa has already seen the impact of a judiciary that did not function separately from the executive. The previous judiciary played a key role in supporting apartheid policy.

Mogoeng said he was experiencing “unbelievable resistance from the executive” to giving the judiciary institutional independence.

He said the judiciary was even excluded from a panel to select the chief operating officer of the office of the chief justice. Mogoeng said the previous minister had agreed to include the judiciary in the interviewing process for the appointment of the secretary general, however, the new Minister of Justice and Constitutional Development Michael Masutha decided to keep the process an executive function, and not include the judiciary.

The office of the chief justice, of which Mogoeng is head, is intended to provide support to the chief justice and other heads of courts to ensure that they discharge their management of judicial functions in courts effectively.

Free of undue influence
The office of the chief justice spent a number of years struggling to be recognised after a report found it would be more effective to allow administrative court functions to be handled by the judiciary themselves, rather than the ministry.

The idea was to “allow the judiciary to make decisions free of undue influence or any politicial secretarian manipulation”.

Despite there being a memorandum of understanding in 2012 that established the office, no funds, personnel or functions were transferred to it. Finally in October this year the transfer was achieved, but it remains under resourced and will be forced to overspend.

Mogoeng said the recognition had been hard won. The had been a promise in April this year that there would be a release of additional functions: “Yet, in the new minister’s budget speech no reference was made to that transfer. It took our meeting in August 18 with the minister of justice and his officials to have the transfer of October 1 this year take place.”

No say over resources
He points out that R15-million for cashflow management projects to improve delivery and performance of the courts and R22-million for judicial education, was insufficient to provide for all the higher courts.

The judiciary do not even have a say over what they require to support the judiciary, he said: “Equipment or tools of trade that are of a poor quality would be procured for us without any consultation.”

“Why it is that the Office of the Chief Justice is required to be babysat?” he asked, when this is not happening to any other Section 9 institutions, the Hawks, the Independent Police Investigation directorate, municipalities or even government departments are not being subjected to similar controls.

“Why would the executive be unwilling to strengthen the institutional independence of the judiciary? What benefit do they hope to or could they possibly derive from a judiciary that has to ‘beg’ for resources?

“Keeping the judiciary dependent for its operations has some remote but real prospects of interfering with the adjudication process, albeit indirectly,” he told the audience.

Mogoeng said for the peace and stability of any country it was essential that an independent, effective and efficient judiciary is maintained, and a weakening of this poses a threat to any constitutional democracy.

He called on academics and intellectuals to ensure that they maintain an active and vigilant role in protecting and upholding this, and make their concerns and objections clear when this is not maintained.

An earlier version of this article incorrectly quoted the chief justice as saying that the judiciary was excluded from the interviewing process for the position of director general. In fact the chief justice was referring to the process of choosing the chief operating officer. The M&G regrets the error.

An earlier version of this article incorrectly also stated that the event was held at the University of Pretoria.